Fritsch v. Ferriter et al
Filing
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ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 7 in full. Matter DISMISSED WITH PREJUDICE. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). Any appeal would not be taken in good faith. Signed by Judge Dana L. Christensen on 1/31/2013. Mailed to Fritsch. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
WILLIAM FRITSCH,
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Plaintiff,
vs.
MIKE FERRITER, DR. KOHUT, DR.
RANTZ, KRISTIE BOESE, and
REBECCA MCNEIL,
Defendant..
CV 12-37-H-DLC
ORDER
__________________________ )
Before the Court are the Findings and Recommendations of United States
Magistrate Judge Keith Strong, recommending that the Amended Complaint be
dismissed for failure to state a claim. Plaintiff William Fritsch has filed objections
and is entitled to de novo review of the specified findings and recommendations to
which he objects. 28 U.S.C. § 636(b)(l). All other findings and recommendations
are reviewed for clear error.
Fritsch reasserts some of the facts described in detail by Judge Strong, but
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insists that they show a "total disregard for his physical well[-]being." In
particular, he recounts the December 2011 incident when he had to be rushed to
St. Patrick's Hospital in Missoula, Montana, and was given a transfusion because
he had red foam in his veins instead of liquid blood. He emphasizes that Dr.
Kohut did not accompany him to Missoula despite a promise to do so. He also
makes new allegations, describing seeing a gastroenterologist in Missoula, who
recommended some bloodwork which was not performed at the prison until two
months later.
In order to state an Eighth Amendment claim for denial of medical care, a
plaintiff must allege specific facts that, if proved, would establish that the plaintiff
had a serious medical need and the defendant showed deliberate indifference to
that need. Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need
exists if failure to treat the condition would result in significant injury or the
"unnecessary or wanton infliction of pain." !d. at 104. To show deliberate
indifference, the plaintiff must allege "(a) a purposeful act or failure to respond to
a prisoner's pain or possible medical need and (b) harm caused by the
indifference." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
As found by Judge Strong, Fritsch has failed to establish that the defendants
acted with deliberate indifference to his medical needs. The prison provided
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Interferon treatment, which was discontinued as soon as a blood draw revealed a
problem. Fritsch was immediately taken to St. Patrick's Hospital when the
problem was discovered, and there is no evidence that any harm was caused by Dr.
Kohut's failure to accompany Fritsch on the ride. Similarly, Fritsch was also
taken to see a gastroenterology specialist in Missoula, who recommended that
further blood tests be performed. Though these tests were allegedly not performed
at the prison until two months later, mere delay, without more, is insufficient to
state a claim of deliberate medical indifference. Shapley v. Nev. Bd. of St. Prison
Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). Fritsch is being monitored and
receiving treatment, and recommended tests are being performed. Mere delay or
even negligence is insufficient to show that prison officials acted with deliberate
indifference to Fritsch's medical problems. Toguchi v. Chung, 391 F.3d 1051,
1057-58 (9th Cir. 2004).
Because Fritsch has already been given an opportunity to amend his
complaint and there being no clear error in the remaining findings and
recommendations, IT IS ORDERED:
1. Judge Strong's Findings and Recommendations are ADOPTED (doc. 7)
in full. This matter is DISMISSED with prejudice for failure to state a claim upon
which relief may be granted. The Clerk of Court is directed to close this matter
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and enter judgment in favor of Defendants pursuant to Rule 58 of the Federal
Rules of Civil Procedure.
2. The Clerk of Court is directed to have the docket reflect that this
dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g) based upon Fritsch's
failure to state a claim.
3. The Clerk of Court should be directed to have the docket reflect that the
Court certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate
Procedure that any appeal of this decision would not be taken in good faith.
Fritsch's failure to state a claim is so clear no reasonable person could suppose an
appeal would have merit. The record makes plain the instant Complaint is
frivolous as it lacks arguable substance in law or fact.
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DATED this 3J__: day of January 2 1 .
Dana L. Christensen, Distric
United States District Court
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